I dissent. I am in harmony with the views expressed by Mr. Justice Preston. The effect of the majority opinion is a distinct backward step in the elimination of grade crossings in this state. The program of the state through its legislature and Railroad Commission to safeguard the life and property of the motoring public is thus greatly delayed by declaring unconstitutional a statute providing for an expeditious and practical method for the separation of grades.
The case of East Bay M.U. Dist. v. Railroad Com., 194 Cal. 603 [229 P. 949], is not in point. There a public agency not then authorized to invoke the powers of the Railroad Commission under section 23a of article XII of the Constitution was endeavoring to compel the Commission to fix and determine the compensation to be paid by the petitioner in contemplation of eminent domain proceedings against the East Bay Water Co., and it was held that under the provisions of the Constitution in force at the time the relief could not be granted. There condemnation was the sole purpose of the proceeding and no question of the regulation of the public utility was involved. Here the condemnation is merely incidental to the main purpose of regulation and control of the public utility.
Waste, C.J., concurred.
Rehearing denied.
Shenk, J., and Preston, J., dissented. *Page 715